[2014] KEHC 589 (KLR)
The court found that both parties were absent on 19th March 2009 due to a mutual mistake regarding the hearing date, as they both believed the matter was scheduled for 17th March 2009. The defendant's conduct, including attempts to fix a hearing date and correspondence with the plaintiff's advocate, demonstrated...
Source-derived case information.
- Citation
- [2014] KEHC 589 (KLR)
- Parties
- Plaintiff: Jackson Kiprotich Arap Kibor; Defendant: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 258 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Dismissal Order and Reinstate Defendant's Application
- Outcome
- Application allowed; orders of 19th March 2009 set aside; defendant's application dated 24th July 2008 reinstated for hearing.
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Default Judgment, Mutual Mistake, Interlocutory Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kiprotich Arap Kibor
Plaintiff
Agricultural Finance Corporation
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Dismissal Order and Reinstate Defendant's Application
Legal Issues
- 1 Whether the orders made on 19th March 2009 dismissing the defendant's application should be set aside.
- 2 Whether the defendant's application dated 24th July 2008 should be reinstated for hearing.
- 3 Whether the absence of both parties on 19th March 2009 was due to a mutual mistake regarding the hearing date.
Ratio Decidendi
The court found that both parties were absent on 19th March 2009 due to a mutual mistake regarding the hearing date, as they both believed the matter was scheduled for 17th March 2009. The defendant's conduct, including attempts to fix a hearing date and correspondence with the plaintiff's advocate, demonstrated lack of knowledge of the dismissal. The plaintiff did not challenge the defendant's explanation or the assertion that negotiations were ongoing. The court held that there was no blame attributable to either party for the confusion and that reinstating the application would not prejudice the plaintiff, especially as no further steps had been taken after interlocutory judgment....
Court Disposition
Application allowed; orders of 19th March 2009 set aside; defendant's application dated 24th July 2008 reinstated for hearing.
Orders
- The application dated 13th December 2011 is allowed.
- The orders made on 19th March 2009 are set aside.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 258 OF 2006
JACKSON KIPROTICH ARAP KIBOR...................PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION......DEFENDANT
RULING
1. The application before the court seeks to set aside the orders which the court made on 19th March 2009. If the relief sought is granted, it will result in the reinstatement of the defendant’s application dated 24th July 2008.
2. The facts leading up to the present application are as follows:
3. The Plaint was filed in court on 17th May 2006. Alongside the Plaint, the plaintiff filed an application for an interlocutory injunction, seeking to stop an auction of the plaintiff’s property which had been charged as security for financial facilities accorded to KESSENCHE TRANSPORT LIMITED.
4. On 31st May 2006, Mr. CYRIL S. WAYONG’O advocate entered appearance for the defendant. However, the defendant did not file and Defence.
5. The plaintiff filed a Request for Judgment in default of the Defence; the said request was lodged in court on 7th February 2007.
6. The Learned Deputy Registrar entered Judgment in favour of the plaintiff on 26th February 2007.
7. On 25th July 2008 the Defendant filed an application to set aside the judgment.
8. The record shows that on 19th March 2009 neither party attended court. However, the learned Judge dismissed the application dated 24th July 2008, on that date.
9. Obviously as both parties were absent from the court on that date, neither of them would have immediately become aware about what transpired on that date.
10. On 8th May 2009, the defendant’s advocate attended at the Court Registry where he had the application dated 24th July 2008 fixed for mention on 15th June 2009. Before going to the Court Registry, the defendant’s lawyer wrote to the plaintiff’s lawyer on 27th April 2009, informing him that the defendant wished to have the Registry set a date for the hearing of the application dated 24th July 2008.
11. To my mind, the conduct of the defendant’s advocate is a clear testimony that he was unaware that the application dated 24th July 2008 had already been dismissed.
12. The defendant has now demonstrated to this court that on 17th March 2009, this case was not on the cause list. The cause list for that day was provided to the court, and the case was not on it.
13. The plaintiff has not controverted the said information. Therefore, on the basis of the clear evidence from the defendant, I find that the parties were both unaware that the application dated 24th July 2008 was scheduled for Hearing on 19th March 2009.
14. The explanation tendered by the defendant was that the two parties had fixed the application for Hearing on 17th March 2009. That explanation has not been challenged by the plaintiff. I therefore accept it as representing the correct factual position even though the court record actually shows that the date minuted was the 19th of March 2009.
15. This is a unique case where there was a mutual mistake on the part of both parties. They knew that they had been given the date of 17th March 2009, whilst the Registry staff had minuted the date as 19th March 2009.
16. Having become aware of the fact that the application dated 24th July 2008 had been dismissed, the defendant has said that it did not immediately seek its reinstatement because the parties were holding negotiations. Once again, the plaintiff has not controverted that assertion. I therefore accept it as representing the truth.
17. We have a situation in which the court has granted interlocutory judgment in favour of the plaintiff. However, the plaintiff has not taken any further steps in the case.
18. In the circumstances, the reinstatement of the application dated 24th July 2008 would not be prejudicial to the plaintiff.
19. The parties will then have an equal chance when the application was canvassed on merit.
20. Accordingly, I allow the application dated 13th December 2011, and set aside the orders made on 19th March 2009. In the result, the application dated 24th July 2008 is reinstated for hearing.
21. However, the defendant and the plaintiff cannot bear any blame for what transpired on 19th March 2009, which gave rise to the need for the current application.
22. I therefore order that the costs of the application dated 13th December 2011 be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this2nd day of December2014.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
……………………………………………for the Prosecution.
………………………………………………for the Accuseds.
Collins Odhiambo – Court clerk.